This Trial Chamber (“Chamber”) of the International
Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia
since 1991 (“Tribunal”) is seized
of the “Defence Renewed Motion for Provisional Release
of Fatmir Limaj” (“Motion
”) filed confidentially on
5 September 2005. This Motion seeks an order from
the Chamber for the Accused Fatmir Limaj to be provisionally
released until the day of the rendering of the judgement
or for any shorter period to be determined by the
Chamber, pursuant to articles 20 and 21 of the Statute
and Rules 54, 65 and 73 of the Rules of Procedure
and Evidence (“Rules”). On 14 September
2005 the Prosecution filed the “Prosecution’s Response
to Defence Renewed Motion for Provisional Release
of Fatmir Limaj” (“Response”), objecting to the Motion.
The Defence filed a “Defence Reply to the Prosecution
Response to Defence Renewed Motion for Provisional
Release of Fatmir Limaj” (“Reply”) on the 21 September
2005 . Pursuant to Rule 126bis of the Rules,
the Chamber granted leave to the Defence to file
the Reply on 22 September 2005.

The Defence previously filed a Motion for provisional
release on 24 June 2003 (“Previous Application”).
Trial Chamber I gave its decision on 12 September
2003
1 (“Previous
Decision”) denying the
Accused request on the grounds that there was a risk
the Accused would abscond. The Trial Chamber reached
this conclusion based on a number of factors, namely;
it could not be satisfied that the Accused would have
surrendered voluntarily if given the opportunity,
the seriousness of the charges against the Accused
and the lack of guarantees from the legitimate authority
and administration of Kosovo, UNMIK . The Defence filed
an application for leave to appeal challenging the
Trial Chamber’s
decision on 22 September 2003.2 The
Appeals Chamber dismissed the application on 31 October
2003, on the basis that the Trial Chamber did not
err in its finding (“Appeals Chamber Decision”). Notably
the Appeals Chamber upheld the Trial Chamber’s finding
on the surrender of the Accused and did not consider
that the Trial Chamber had placed too much emphasis
on the absence of guarantees from UNMIK.

SUBMISSIONS

In support of its Motion, the Defence submits
that the requirements for provisional release after
trial are no different than the requirements that
would apply to pre -trial release. The Defence refers
to the Previous Decision and submits that the Trial
Chamber’s finding was predicated upon the absence
of a guarantee from the legitimate authority and
administration of Kosovo, UNMIK. In this regard,
the Defence mentions the recent decision in the
Ramush Haradinaj case, in which UNMIK provided guarantees
for the release of the Defendant and mentioned the
general improvement of the security situation in
Kosovo. The Defence submits that as a result, the
renewed Motion is materially different from that
of the Previous Application. The Defence maintains
that, contrary to the finding of the Chamber in the
Previous Application for provisional release, the
Accused did, in fact, voluntarily surrender. In support
of this submission, the Defence refers to the Accused’s
live testimony and that of Mr Bajram Rexhepi at
trial, as well as the written submissions previously
considered by the Trial Chamber. The Defence submits
that the circumstances of the Accused’s
surrender are similar to those of Ramush Haradinaj
except that he was not afforded the same opportunity
to voluntarily surrender. The Defence contends that
there are personal circumstances which support
the granting of provisional release, in particular
, the health of the Accused’s parents, the Accused’s
desire to be reunited with his family and to prepare
for after the trial, whatever the outcome. The Defence
included within the submission a pre-emptive rebuttal
to anticipated submissions by the Prosecution. The
Defence asserts that the fact that the Prosecution
has given its sentencing recommendations is meaningless
until the pronouncement of judgement . In this regard,
the Defence also submits that the evidence in the case
is not
“overwhelming”. It is the Defence’s submission that
the Accused would not use the opportunity to flee
as he would not want to become a fugitive for life.
Finally, the Defence submits that the decision by
another Trial Chamber to provisionally release Biljana
Plavsic following her plea of guilty and prior to the
rendering of sentencing is relevant in consideration
of the Motion. In the Reply the Defence denies all
allegations of interference with witnesses. The Defence
asserts that there were unsubstantiated allegations
made by the Prosecution prior to trial, no evidence
of which was tendered at trial. The Defence notes that
no evidence of witness intimidation has been offered
by the Prosecution. The Defence also contends that
the Prosecution’s submissions are factually inaccurate
in alleging that the Accused had a false place and
date of birth on his passport advancing by way of
explanation that during this period of turmoil many
travel documents contained mistakes. The Defence
further insists that the Accused’s failure to inform
the media of his correct whereabouts was to avoid
difficulties in travel arrangements and afford the
Accused an amount of privacy and allow him to maintain
some dignity. In response to the Prosecution assertion
that at this stage in the proceedings the incentive
is stronger than ever for the Accused to flee, the
Defence contends that the charges, and the sentencing
recommendations in the submissions of the Prosecution
are at the “lower
end of the spectrum of crimes before the ICTY”.3
Further, should UNMIK be unwilling or unable to monitor
the Accused effectively, the Defence reiterates its
alternative submission for a short fixed period of
provisional release. As a further alternative it is
submitted that the Chamber might order that no legal
transfer take place but the Accused be allowed to make
a supervised visit to his parents in Kosovo, undertaken
in the custody of Tribunal personnel.

The Prosecution objects to the Motion on a
number of grounds. It submits that the assertion
of the Accused in his Motion that the Previous Decision
was “predicated
upon the absence of a guarantee from UNMIK”4
is merely a reiteration of the argument put forth in
the appeal against the initial decision which was
rejected in the Appeals Chamber Decision. Further,
the Prosecution argues that the ability of UNMIK to
provide guarantees to the Chamber in respect of the
Accused has not materially changed from its position
stated in the Previous Application; in support of
this, the Prosecution makes reference to the case of
Beqa Beqaj in which UNMIK advised, earlier this year,
that it would be unable to fully monitor the Accused
due to insufficient resources. The Prosecution submits
that the circumstances of the Accused’s surrender
should not be re-examined and as it was thoroughly
dealt with in the Previous Decision and the Appeal
Chamber Decision, which specifically upheld the Trial
Chamber’s finding that the Accused
did not voluntarily surrender, noting his false representations
to the press and to the arresting authorities in
Slovenia. The Prosecution submits that there has
been nothing put before the Chamber to cause it to
depart from the Previous Decision . It suggests that,
in view of the strong evidence against the Accused
and his awareness of the Prosecutions submissions
as to sentencing, it is “difficult to imagine a
case in which an accused would have a stronger incentive
to flee”5.
The Prosecution distinguishes the two recent cases
granting provisional release pending judgement on
the facts6,
particularly as all three accused granted provisional
release had previously being granted provisional
release before trial. Further, it draws a further
distinction with the application of Ramush Haradinaj,
who had voluntarily surrendered to the Tribunal and
whose trial will not begin until possibly 2007. The
Prosecution submits that the case of Biljana Plavsic
is not comparable as she had entered a plea of guilty,
a plea which represented an important step towards
reconciliation in her country. The Prosecution further
maintains that the Accused would pose a threat to
victims and witnesses should he be released. In this
regard it is contended that events since 2003 have
confirmed the danger to victims and witnesses in
this case and that there are “supported suspicions
”7 that
people close to the Accused have been involved in
witness intimidation. The Prosecution submits that
this situation persists even though the witnesses
have completed their testimony, particularly as the
proceedings in this case are not finalised and there
could be reason to call or re-call witnesses in the
future.

DISCUSSION

Rule 65 of the Rules provides, in so far as
it is relevant:

(A) Once detained, an accused may not be released except
upon an order of a Chamber .

(B) Release may be ordered by the Trial Chamber only
after giving the host country and the State to which
the accused seeks to be released the opportunity
to be heard and only if satisfied that the accused
will appear for trial and, if released, will not
pose a danger to any victim, witness or other person.

The Chamber accepts that Rule 65 is not as
a matter of construction limited to pre-trial proceedings
and that it is in a position to consider the application
of the Accused.8

The Appeals Chamber has indicated a non-exhaustive
list of factors to be taken into account when considering
whether to grant provisional release, so far as these
are relevant to provisional release pending judgement,
these are: whether the applicant is charged with
serious criminal offences and, if convicted, is likely
to face a long prison sentence; the circumstances
in which he surrendered; the degree of co -operation
given by the authorities concerned; whether the relevant
government has given guarantees that the accused
will return to the Tribunal for judgement and observe
the conditions set for his provisional release; whether
the accused has held very senior positions, so far
as it is relevant to the weight of governmental
guarantees; whether the applicant has given a personal
guarantee to abide by any conditions set for his
provisional release; the likelihood that the relevant
authorities will re-arrest the accused should he
decline return to the Tribunal when required - so
far as that can be predicted in the present circumstances.
To this the Chamber would add the conduct of the
Accused during trial. The degree of relevance and
the relative weight to be attached to these considerations
will, of course, vary with the particular circumstances
of the case.

The Tribunal’s jurisprudence indicates that there
should be a “material change
in circumstances” which would justify reconsideration
of a renewed motion for provisional release.9 The burden of proof remains
on the Accused to satisfy the Chamber, in particular,
that he will appear for judgement and, while released,
that he will not pose a danger to any victim, witness
or other person.10 Due to the jurisdictional
and enforcement limitations of the Tribunal and its
need to rely on local or international authorities
to monitor the movements and conduct of the Accused
and to affect its arrest warrants, the Accused must
have a clear and strong case to satisfy the Chamber
that he will appear for judgement if released, and
that he will not pose a danger to any victim, witness
or other person.11

On 10 October 2005, the authorities of the
host country informed the Tribunal that they had
no objections in respect of provisional release of
the Accused. On 11 October 2005 the legitimate authority
and administration in Kosovo, UNMIK, replied to
an enquiry ordered by the Chamber as to the nature
of the supervision and the guarantees it could provide
in relation to the Accused. The Chamber, therefore,
considers that the requirement set forth in Rule
65(B) to afford the host country , and the State
to which the Accused seeks to be released, the opportunity
to be heard has been fulfilled.

Contrary to a significant thrust of the Defence
submissions, the Chamber is not able to accept,
at this stage, that it should proceed on the basis
that there is a material change of circumstances
because, in view of the evidence led at trial , there
is a significantly reduced prospect of conviction
of the Accused. The Chamber is presently engaged
in the process of evaluation of the evidence, and
the submissions of the parties on a number of legal
issues, with a view to reaching its decision in
respect of the guilt or innocence of the Accused,
and of each of his two co-accused , in respect of
the charges against them. In this case, it cannot
be concluded at this stage, without a full and due
evaluation of the law and evidence, that there is
little or no prospect of conviction of the Accused.
In the Chamber’s view it
would not be in the interests of justice for the purposes
of this Motion, to divert its attention from a full
assessment of the law and evidence to determine the
guilt or innocence of each accused, for the purpose
of making some kind of interim assessment of the “prospects
of conviction or acquittal” of the Accused Fatmir
Limaj in respect of each of the charges he faces.

Indeed, in-so-far as the prospects of conviction
and punishment may well encourage flight by the
Accused, it should be noted that, at this stage,
the Accused has heard all the evidence and submissions.
It is likely to be his personal evaluation of prospects
of conviction which would influence his conduct,
rather than this Chamber’s
ultimate appreciation of the law and the evidence.
The Chamber is not in a position to evaluate how
the Accused might see his prospects at this stage.
Hence, it has been held that proximity to judgement
is a factor which might militate against an order
for provisional release.12 Depending
on the assessment of an accused of his prospects of
conviction, the risk of flight may well be at its
highest at this stage of the proceedings.

While some emphasis was placed by the Prosecution
in its submissions as to the appropriate level of
punishment which might be imposed in the event that
the Accused is convicted of all the charges which
he faces, and while this may weigh heavily with
the Accused at this stage, the Chamber notes that
for this present purpose it gives no weight to the
Prosecution submission. Should the Accused be found
guilty of one or more of the charges he faces, it
remains clear, nevertheless , by virtue of their
nature and seriousness, that there is a real prospect
of a significant term of imprisonment. Hence, the
prospect of conviction cannot be dismissed as of
little consequence or relevance.

The Chamber is conscience, of course, that,
the expectation of a long sentence cannot of itself
be held against the accused in abstracto, as
all accused before the Tribunal are charged with
serious crimes and, if convicted, are likely to
face heavy sentences.13 Nevertheless
, for the reasons given the seriousness of the charges
against the Accused and the length of the Accused’s
potential sentence is a factor which militates to
some extent , especially at this pre-judgement stage,
against the Provisional Release of the Accused.14

Much attention was paid in the course of the
submissions to the circumstances of the Accused’s
surrender. In so far as the Defence now seeks to
rely on evidence of the Accused and another in the
trial relevant to these circumstances, the Chamber
observes that the general effect of this evidence
is not to suggest a materially different factual
setting but rather to seek to provide a different
explanation and justification for the conduct of
the Accused at the time. While the Chamber accepts
that, if this evidence were to be accepted, the Accused’s
ultimate objective may not have been flight, nevertheless,
it would remain the case that at the least he went
to some lengths to avoid and delay the time at which
he was taken into custody , and did so with the knowledge
of one or more members of the Government. It remains
a matter of some uncertainty whether he would have
ultimately surrendered voluntarily to the Tribunal
had the matter not been taken from his hands.

No formal Governmental guarantees were provided
to the Chamber in support of this Motion. Counsel
merely outlined possibilities as indicated in two
letters. In an effort to clarify the position of
the legitimate authority and administration of Kosovo,
UNMIK, to which the Accused wishes to be released,
it had enquiries made of UNMIK and received a detailed
indication of the position of UNMIK. This is relevant
and of importance, of course, because of the lack
of an enforcement mechanism on the part of the Tribunal.15 The Chamber
will consider the assistance and guarantees UNMIK is
ready to offer in light of the particular circumstances
of the case16
and the personal circumstances of the Accused.17
The need to make enquires of UNMIK has led to delay
in dealing with this Motion.

The Chamber has taken into account the submission
of the Defence in relation to the guarantees in
the Ramush Haradinaj case18.
The Chamber has also considered that the reply from
UNMIK, in which it states that its response to certain
requirements in this case differs from those given
in the Beqa Beqaj case, shows that in some respects
the present capacity of UNMIK to effectively monitor
the Accused while he is in Kosovo has improved. However,
the Chamber is also conscious of the conditional
and limited ability of UNMIK to provide assurances
as to the Accused’s compliance with the conditions
of his provisional release, even while he is in
Kosovo. The lack of definite assurances, coupled
with the position of UNMIK with respect to the
Accused’s transfer and its reluctance to assume
responsibility for the Accused during the journey
between Schipol Airport and Kosovo and the return
, leaves the Chamber with real reservations about the
extent to which UNMIK is in a position to ensure
that the Accused will comply with the conditions
of his release , including non-interference with
witnesses, and to be present in the Tribunal for
judgement. No persuasive justification is offered
for the Defence proposal that the Tribunal accept
the financial and security obligation of transferring
the Accused to and from Kosovo. The Chamber further
notes that the Accused has held very high political
office in Kosovo and remains a person apparently
of considerable influence .

The Prosecution correctly noted that each of
the three persons who have in recent times been
granted provisional release pending judgement had
also been granted pre-trial provisional release.
Each accused had thereby demonstrated that they could
abide by the conditions of their release, a fact
taken into account in each case .19 The Accused in this case has
not previously been on provisional release, as a
result the Chamber is not in a position to be able
to rely on the demonstrated past willingness of the
Accused to abide by the terms and conditions of
release. When assessing these factors the case of
Biljana Plavsic is materially distinguishable from
the present because provisional release was granted
there following a plea of guilty.20

The Chamber is not persuaded that it should
accept the Prosecution’s submissions
that, if granted provisional release, the Accused would
pose a danger to any victims , or to witnesses that
appeared at the trial, or to others. The “supported
suspicions
”21 of
a potential involvement of the Accused in witness
interference have not been substantiated in any way
in the course of the proceedings or on this Motion.
In this context, and also generally , the Chamber observes
that the conduct of the Accused in the course of the
trial has been appropriate and without apparent fault.

In light of the abovementioned and, in particular,
the conditional and limited capacity of UNMIK to
guarantee that the Accused would return to the Tribunal
when required, the fact that at this stage in the
proceedings the potential risk of flight and the
personal temptation to flee remains strong and may
be at its uppermost and the absence of appropriate
security and financial arrangements for the movement
of the Accused to and from Kosovo, leaves the Chamber
in a position where on those merits it cannot be
confident, as required, that the Accused would appear
to receive judgement if granted provisional release.

DISPOSITION

For the foregoing reasons, pursuant to Rule 65 of the
Rules, the Trial Chamber
DENIES the Motion.

Done in English and French, the English version being
authoritative.

______________________
Judge Kevin Parker
Presiding

Dated this twenty-sixth day of October 2005
At The Hague
The Netherlands